Holland v. National Railroad Passenger Corporation

Filing 38

ORDER Denying 19 Defendant's Motion to Dismiss Without Prejudice. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
REBECCA HOLLAND,
Plaintiff,

Case No. 19-11609
HON. VICTORIA A. ROBERTS

v.
NATIONAL RAILROAD
PASSENGER CORPORATION d/b/a
AMTRAK,
Defendant.
_____________________________/
ORDER DENYING DEFENDANT’S
MOTION TO DISMISS WITHOUT PREJUDICE [ECF No. 19]
On February 24, 2020, Defendant filed a motion to dismiss [ECF No.
19] pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(v) arguing that
Plaintiff failed to comply with this Court’s January 3, 2020 Stipulated Order
[ECF No. 15]. The January 3 Stipulated Order required that the Plaintiff
“…serve full and complete answers…” to discovery requests.
On June 12, 2020, the Court again ordered Plaintiff to supplement
discovery responses. [ECF No. 23]. The Court warned Plaintiff that if she
chose not to supplement her responses, the Court may grant Defendant’s
motion.

1

Plaintiff submitted three sets of supplemental answers: Plaintiff’s
Supplemental Answers to Defendant’s Interrogatories [ECF No. 19-4];
Plaintiff’s Second Supplemental Answers to Defendant’s Interrogatories
[ECF No. 19-6]; and Plaintiff’s Third Supplemental Answers to Defendant’s
Interrogatories [ECF No. 24-1].
On June 30, 2020, the Defendant filed a Supplemental Brief
addressing why Plaintiff’s supplemental responses continue to be deficient
[ECF No. 24].
The Court reviewed the Defendant’s motion. The Court affords Plaintiff
a final opportunity to cure the defects.
1. Interrogatory no. 14: This interrogatory asks Plaintiff to “State the
name, address and telephone numbers of all persons who have knowledge
of any relevant facts relating to this case…”
In each of her responses, Plaintiff lists Lydia Marshall, Cynthia
Stephens Hill, and Nicholas Holland and gives addresses but no phone
numbers. Plaintiff also lists “…all of my family and friends, co-workers,
doctors, nurses, people on the train that saw me fall, Amtrak conductor and
employee [sic] that helped me…,” as persons with knowledge of relevant
facts. Plaintiff additionally states “[p]laintiffs [sic] physicians were identified
previously,” including Dr. Hoegler, Dr. Malik, and Dr. Robinson. Plaintiff tells
2

Defendant to look to her medical records and authorizations to obtain Dr.
Hoegler, Dr. Malik, and Dr. Robinson’s phone numbers and addresses.
These responses are insufficient. Neither the Defendant nor the Court
is responsible to comb through Plaintiff’s answers or piece together her
responses to get a full and complete response to the interrogatory.
These answers give several broad categories of people: “all of my
family and friends, co-workers, doctors, nurses, people on the train that saw
me fall, Amtrak conductor and employee [sic] that helped me…,” but not a
full and complete response. F. R. Civ. P. 33, the rule discussing written
interrogatories, “is intended to enable a party to prepare for trial, to narrow
issues and … determine what evidence will be needed at the trial, and to
reduce the possibility of surprise at the trial.” See Hickman v. Taylor, 329
U.S. 495 501, 507, 67 S. Ct. 385, 91 L.Ed. 451 (1947).
This is the last opportunity the Court gives Plaintiff to provide the phone
numbers and addresses of Dr. Hoegler, Dr. Malik, Dr. Robinson, and the
phone numbers for Lydia Marshall, Cynthia Stephens Hill, and Nicholas
Holland.
Additionally, the Court strikes Plaintiff’s response: “all of [her] family
and friends, co-workers, doctors, nurses, people on the train that saw [her]
fall…” The Court has the power to limit witnesses to those listed in discovery
3

responses. Fed. R. Civ. P. 37(b)(2)(A)(ii) empowers the Court to prohibit
disobedient parties from introducing designated matters into evidence.
If Plaintiff fails to supplement her answer to interrogatory no. 14, she
will be barred from calling anyone listed as a witness at trial.
2. Interrogatory no. 15: This interrogatory asks Plaintiff to:
State the name, address and professional status of any
and all persons whose services you will utilize for the
purpose of introducing expert testimony at trial. With
respect to each proposed expert witness, provide…: the
subject matter on which he/she is expected to testify; the
substance of facts and opinions to which he/she is
expected to testify; and a summary of grounds of each
opinion.
This interrogatory also asks Plaintiff to “annex true copies of all written
reports rendered to [her] by any such proposed expert witness” and the
proposed expert’s “curricula vitae, fee schedule and testimony list.”
Plaintiff’s supplemental responses to this interrogatory are insufficient.
Plaintiff narrows her trial experts to three of her medical providers: Dr.
Hoegler; Dr. Malik; and Dr. Robinson. Plaintiff provides the subject matter
and substance of facts and opinions which each expert is expected to testify
to, and the summary of grounds for each opinion. But Plaintiff states that she
“has not consulted with these individuals, nor retained them in any capacity.”
Plaintiff states that she: “reserves the right to call any of her providers as

4

experts…” Plaintiff does not identify any other potential experts in her answer
to interrogatory no. 15.
Although Plaintiff attempts to reserve the right to call any of her medical
providers as experts, the Court bars Plaintiff from calling any medical
providers not listed in interrogatory no. 15 as trial expert witnesses.
According to Fed. R. Civ. P. 37(c)(1), if a party fails to identify a witness as
required, “the party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially harmless or justified.” See Roberts ex rel. Johnson v. Galen of
Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003) (quoting Vance v. United
States, 182 F.3d 920 (6th Cir. 1999)).
The Court allows Plaintiff more time to provide the information about
the three named doctors that Defendant seeks in interrogatory no. 15,
including: addresses; true copies of all written reports rendered to her by the
named proposed experts; the proposed expert’s curricula vitae; fee
schedule; and testimony list.
3. Interrogatory no. 16: This interrogatory asks Plaintiff to provide “any
photographs … taken of the equipment involved in the incident, incident

5

location, plaintiff’s alleged injuries and/or anything else relevant to the
plaintiff’s claim.” Defendant also asks Plaintiff to:
…give the date that each of said photos…were
taken, the name, address and telephone number of
the person who took said photographs…the name,
address and telephone number of all individuals
present when said photographs were taken, and a
specific description of what was shown in each of
said photographs…
In her Third Supplement, Plaintiff states that she provided Defendant
with “photographs and instructions on how to recover the information
requested…” Plaintiff provides the information listed from each JPEG file
including: date and time taken; the photographer; and a brief description of
what each image shows.
Plaintiff’s supplemental response to interrogatory no. 16 is sufficient.
4. Interrogatory no. 20: This interrogatory asks Plaintiff to state whether
she claims as a result of the incident that “she suffered injuries or disabilities
which caused [her] to be confined to [her] home and/or limit or cease [her]
participation in any normal activities, hobbies or other forms of recreation.”
The interrogatory also asks Plaintiff to:
set forth how long [she] was confined to [her] home and …
whether [her] participation has been limited or totally
prevented, the injury which adversely affects [her]
participation, if participation has been limited, the degree
of limitation, and with what frequency during the two years
6

prior to the incident [she] engaged in the activity, hobby or
form of recreation.
Plaintiff’s answer and supplemental answers state that she was
“confined to [her] home from January 2, 2019 through April 2, 2019.”
Plaintiff’s “normal activities” were affected, including “community service
activities, Zumba, wearing shoes [she] previously purchased, outside work,
exercise, walking distances including benefit walks, driving, dancing.”
Plaintiff states that she “did all of these on a regular basis prior to the
incident.”
Plaintiff does not state how long she was limited or prohibited from
driving, the degree of her driving limitation, nor with what frequency she
drove in the two years prior to the incident.
In her third supplemental response, Plaintiff gives more detail about
Zumba, dancing, shoes, and benefit walking. She states:
I did Zumba roughly 3 times per week before the accident,
and sometimes 4. Since the accident I was completely
unable to perform it until roughly September or August
2019 but have not been able to go back at the same
intensity. I have also not been able to return very often, only
roughly 1 or 2 times per month. I did ballroom dancing prior
to the accident around 2 or 3 times per month. After the
accident I was initially unable to return. I have not really
been able to return to ballroom dancing as I do not have
the same pivot and turn. I cannot move well in the high heel
ballroom dancing shoes. I have not been able to do any
benefit walks since the accident and my community service
7

activities have been much less since the accident – I did a
very short 3 to 4 block Black Lives Matter walk in the last
few weeks.
She still does not give a frequency for outside work or community
service. Plaintiff also fails to describe the duration of any limitations for these
activities.
Plaintiff must supplement her answer and give the precise detail
requested in this interrogatory for the activities she lists in the two years prior
to the incident. Plaintiff must also explain how long she was prohibited or
limited from performing each activity.
The Court will limit Plaintiff’s testimony to the activities that she lists in
her answer, with the detail Defendant requests.
5. Interrogatory no. 22: This interrogatory asks Plaintiff if she “currently,
or … in the past, maintained a Facebook, Twitter, Tumbler, Google+,
Myspace, Instagram, YouTube, and/or other online social media account,
blog, and/or address.” Defendant also asks Plaintiff to provide “all dates she
maintained such accounts and/or addresses; the addresses of same; the
account numbers for same; and the passwords for same.”
In her third supplemental response, Plaintiff provides her Facebook
login information.
Plaintiff’s response to Interrogatory no. 22 is sufficient.
8

6. Interrogatory no. 25: This interrogatory asks Plaintiff to “produce a
certified printout of all content from any and all Facebook … accounts …
maintained by plaintiff at any time through the present.”
In her second supplement, instead of providing a certified printout of all
Facebook content, Plaintiff provides the login information to her Facebook
account. In Plaintiff’s response to interrogatory no. 22, Plaintiff responds that
she has a Facebook account and does not refer to any other social media
accounts, blogs, and/or addresses.
Plaintiff’s response to Interrogatory no. 25 is sufficient.
CONCLUSION
Plaintiff must supplement answers to interrogatories as follows:
1. Interrogatory no. 14. Provide phone numbers and addresses for Dr.
Hoegler, Dr. Malik, and Dr. Robinson, and the phone numbers for Lydia
Marshall, Cynthia Stephens Hill, and Nicholas Holland.
2. Interrogatory no. 15. Provide: each proposed expert’s address; true
copies of all written reports rendered to Plaintiff by the named proposed
experts; the proposed expert’s curricula vitae; fee schedule; and testimony
list.

9

3. Interrogatory no. 20. Provide detail as defendant requests, for activities
listed, in the two years prior to the incident and how long she was prohibited
or limited from participating in each activity.
Plaintiff must serve full responses to Defendant’s interrogatory nos. 14,
15, and 20 within fourteen (14) days of this Order.
If Plaintiff fails to comply in any way with this order, the Court will
entertain Defendant’s renewed motion to dismiss. This is a sanction, but a
district court may sanction parties who fail to comply with its orders in a
variety of ways, including dismissal of the lawsuit. Bank One of Cleveland,
N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir 1990). Dismissal of a matter
under Rule 37(b)(2)(A) is a severe sanction that should only be imposed as
a last resort. But if Defendant must refile this motion because Plaintiff fails to
comply with this order, the Court will consider the severest sanction.

IT IS ORDERED.
S/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: September 14, 2020

10